Category Archives: Uncategorized

Brown v. Advocate Health – Trial Court Did Not Abuse Discretion in Requiring In Camera Inspection of Self-Insured Trust Documents Withheld by Defendant Hospital

Brown v. Advocate Health and Hospitals Corporation, No. 1-16-1918.

Facts:  Defendant identified a self-insured trust with coverage of $14.5 million but refused to produce the corresponding documents.  Plaintiff presented a motion to compel and the trial court ordered that defendant produce the documents for in camera inspection.  Defendant refused and requested a friendly contempt finding in order to appeal the order.

Holding:  Trial Court did not abuse discretion in requiring defendant to produce the documents for in camera inspection and defendant’s argument that the documents were not relevant is incorrect as the amounts of available insurance coverage for a claim is important information for litigants as a practical matter and should be fully disclosed.

Filed in Trial Book Under:  Discovery; Insurance Coverage

Commentary:  I have not run into this specific response from a defendant to a request for insurance information but often get some type of “relevance” objection to the production of actual policy documents.  Typically, the defendants will disclose the amount of insurance and excess policies in their answers to interrogatories and then file a pro-forma objection when the documents are requested in a 214 Request for Production.  As a practical matter, this non-disclosure tactic works because the insurance coverage is adequate to satisfy any judgment and/or the actual insurance contract documents are not particularly needed to determine whether there is coverage or not so it’s not worth fighting over in a motion to compel.  In cases where there may be a coverage issue, like construction claims where there are tenders from the general to a sub-contractor, it is important to actually see the language in the contract, so this case could be helpful in the event that there is push back in producing it.   Moreover, in a case where the damages are extensive and could easily exceed the different policies it would be a good idea to have access to the actual agreements so this case could be useful in that type of dispute.  Also of interest in this case is that Justice Gordon filed a dissenting opinion finding that the documents would likely be confidential financial documents that should not have been produced.

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Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp. – Verdict for Plaintiff Awarding Pain & Suffering But No Disability Not Legally Inconsistent

Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp, 1-10-2953 (Connors)

Facts:  The plaintiff is injured on her job as a conductor pulling a switch and files a FELA claim against Metra.  The plaintiff seeks damages from the jury for past and future pain and suffering, disability and lost wages.  The nature and extent of her injury is hotly contested by the defendant through cross-examination of the plaintiff’s expert.  The jury returns a verdict awarding damages for lost wages and pain and suffering, but not disability.  The plaintiff appeals arguing that the verdict is legally inconsistent and the finding of no damages for disability was against the manifest weight of the evidence.

Holding:  The verdict awarding damages for pain and suffering and lost wages relating to an injury claim but no damages for disability was not legally inconsistent because a reasonable hypothesis existed to support the finding.  Further, the trial judge did not abuse its discretion in finding that the verdict was not against the manifest weight of the evidence.

Filed In Trial Book Under:  New Trial – Inconsistent Verdict

Commentary:  The rule for inconsistent verdicts states that a verdict is not considered irreconcilably inconsistent if it is supported by any reasonable hypothesis.  One thing that stood out for me reading this case is that the opinion indicates that there was no instruction defining disability.  Also, all of the expert testimony addressing disability focused upon issues of plaintiff’s ability to work.  For this reason, the Appellate Court concluded that there was a reasonable hypothesis for the jury to award no damages for disability, namely that the award for lost wages covered disability.  This is an unfortunate result for the plaintiff.  I have always struggled with the disability element of damages because people have very different views in what disability or being disabled means.  I always worry that a juror will require a plaintiff to be wheelchair-bound or brain damaged in order to think of them as “disabled.”  Therefore, I typically opt to use the loss of normal life element instead.  There is a specific instruction defining loss of normal life that helps jurors understand the element that they are considering.  The instruction coupled with testimony from the plaintiff, and hopefully the treating physicians, should be sufficient evidence to support a finding of damages for loss of normal life as a separate element from the others.  This still doesn’t mean that a finding of no damages is against the manifest weight of the evidence.  As this opinion points out in it’s citations, the jury is free to weigh the credibility of the evidence and to accept or reject evidence that is presented at trial.  For me, this case is a reminder of how important it is to keep the jury instructions in mind while presenting evidence and to be sure to admit evidence that covers all of the elements that need to be proven and that you will be arguing to the jury during closing arguments.  There was also a discussion in this case about an issue relating to the scope of re-direct examination, where the plaintiff tried to raise issues from a report that had been barred due to Rule 213 but argued that the defendant had opened the door in its cross examination of the plaintiff’s expert.  These issues are typically very fact specific and the court, not surprisingly, found that the trial court had not abused its discretion in limiting the re-direct examination.

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Van Gelderen v. Hokin – First District Affirms Jury Verdict for Premises Liability Based Upon Location of Stairway in Relation to Door

Van Gelderen v. Hokin – 1-09-3152 (Cahill)

Facts:  Plaintiff, a window covering installer, was injured when he fell down a stairway at the defendant’s home.  As a person is exiting the home, the stairway is immediately to the right of a door that opens inward and has a door handle that is on the side of the door closest to the stairway.  The distance from the side of the door to the first riser on the stairway is only 5 inches.   At trial, Plaintiff’s expert witness, an architect, testified that the location of the door in relation to the stairway was unreasonably dangerous because most people when they encounter a door that opens inward will either step backward as they open the door or will step to the side of the door in the direction away from where it is moving.  In this case, if the person opening the door moves to their right as the door is opening, the 5 inches of space before the first step on the staircase is insufficient and they are at risk of losing their balance and falling down the stairs, which is exactly what occurred with the plaintiff.  The jury found in favor of the plaintiff but reduced the damages by 50% for contributory fault.  The defendant moved for JNOV which was denied by the trial court and then appealed.

Holding:  It is reasonable to conclude from the testimony of plaintiff’s expert witness that the configuration of defendant’s side entrance constitutes an unreasonably dangerous condition.

Filed In Trial Book Under:  JNOV, Premises Liability, Stairways

Analysis:  This is a very good result for the plaintiff, and I am especially impressed with the ability of the plaintiff’s attorney to put this case together.  There is a strong dissenting opinion from Justice Garcia, who believed that summary judgment should have been granted at the outset such that the case never should have reached a jury.  However, it seems from the language at the very outset of the holding that the majority saw it as a close call too.  As the court states in the opinion:

“in reviewing a judgment notwithstanding the verdict, this court may not substitute its judgment for that of the jury.  York, 222 Ill.2d at 178.  Rather, its role is limited to deciding whether the evidence, when considered in a light most favorable to the plaintiff, fails to establish a necessary element of the plaintiff’s claim.  See York, 222 Ill.2d at 178.  The evidence here was sufficient to support the jury’s finding that plaintiff’s injury was caused by an unreasonably dangerous condition on defendant’s property.”

The opinion discusses two prior premises liability cases involving stairways, Alcorn v. Stepzinski, 185 Ill.App.3d 1 (1989) and Glass v. Morgan Guaranty Trust Co., 238 Ill.App.3d 355 (1992), which basically hold that all stairways are dangerous and in order to establish liability for their configuration a plaintiff must establish that the dangerous condition was masked or obscured somehow.  The majority opinion then distinguishes these cases based solely upon the fact that in this case the plaintiff presented expert testimony that the stairwell was unreasonably dangerous.  Obviously, had the plaintiff not had an expert in the case, then the result would have been much different.  What interested me most about the expert is that he was an architect, yet the crux of his opinion was basically a human factors analysis of what people do when confronted with a door.  Apparently, the defendant had an expert that testified that the stairway and door configuration complied with the building code and was approved by the village.  In my opinion, it’s tough to win a premises liability case without a building code violation, so the result here is all the more impressive.  The opinion addresses a number of other issues, including the “open and obvious” defense, but I really only included this because I was impressed with the result on a very difficult case.

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Berge v. Mader – Judicial Estoppel Bars Personal Injury Claim That Was Not Disclosed Prior To Bankruptcy Discharge

Burge v. Mader, 1-10-3778 (Quinn)

Facts:  Plaintiff files for Chapter 13 bankruptcy in April 2006.  The following month she is involved in an automobile collision and files suit for related injuries in November 2007.  In Ma7 of 2009 she converted her Chapter 13 bankruptcy to a Chapter 7 and did not disclose her pending lawsuit and received a “no assets” discharge.  Defendants independently learn of the bankruptcy and file a motion to dismiss which is granted by the Circuit Court.

Holding:  Federal statute, 11 U.S.C. Sec 561, places an affirmative duty on the plaintiff to disclose claims in bankruptcy and the failure to do so will result in the claim being dismissed pursuant to judicial estoppel.

Filed In Trial Book Under:  Bankruptcy, Judicial Estoppel

Commentary:  Illinois courts have determined that judicial estoppel has five separate elements, as follows: (1) the two positions must be taken by the same party; (2) the positions must be taken in judicial proceedings; (3) the positions must be given under oath; (4) the party must have successfully maintained the first position, and received some benefit thereby; and (5) the two positions must be ‘totally inconsistent’.  The court found that all five elements were present in this case and therefore the state court claim was barred pursuant to judicial estoppel.

An interesting point of this case is that the plaintiff tried to claim that she told her bankruptcy attorney about the claim but the attorney failed to include it in the petition.  Both the circuit court and the appellate court were unpersuaded by this argument because the plaintiff is bound by the acts of his or her attorney.  I doubt that an attorney would give this type of advice as there is no upside to do this for either the bankruptcy attorney or the attorney handling the personal injury claim.


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Hornacek v. 5th Avenue Property Management – Summary Judgment for Landowner Reversed on Snow and Ice Accumulation Slip and Fall

Hornacek v. 5th Avenue Property Management,, No. 1-10-3502 (Harris)

Facts:  Plaintiff slips and falls on ice in the parking lot of an apartment building.  Facts developed in discovery revealed that the snow contractor would pile the snow in an area next to the building where there would be run-off of water from the snow pile into the parking lot during melting temperatures which could then freeze again, creating “invisible ice.”  Trial court granted the defendants motions for summary judgment on the basis of non-liability from natural accumulations and lack of notice.

Holding:  The run off from piles of snow created as a result of  snow removal efforts are an unnatural accumulation of ice that can be actionable rendering summary judgment improper.

Filed in Trial Book Under:  Premises Liability, Landowner Liability, Snow and Ice

Commentary:  This case places a much needed dent in the knee-jerk position adopted by many that if the fall resulted from ice then there is no actionable case.  I think that this strikes a reasonable balance between scenarios where the condition is truly just a function of weather and those where had the maintenance provider exercised a bit more care there would be no condition at all.  The Plaintiff’s attorney seemed to do a pretty good job of establishing that the location chosen to place these large piles of snow had a direct causal relationship to the creation of the icy condition where the plaintiff fell.  It also reiterates that the location of the fall is very important to the appellate court.  When the dangerous condition is located where people are likely going to be walking to get in and out of the premises there is a much stronger likelihood of the court finding liability.

The opinion contains a plethora of case law and rules regarding landowner liability relative to snow and ice accumulations that will be very handy to anyone writing a brief on the subject.  Here is a recap of the important rules:

  • When a landowner elects to undertake snow and ice removal, the landowner has the duty to exercise ordinary care in doing so.  Erasmus v. CHAm 86 Ill.App.3d 142, 145 (1980)
  • A party under contract with a landowner to remove snow or ice also bears a duty of reasonable care for the customers on the property. Madeo v. Tri-Land Properties, 239 Ill.App. 288, 290 (1992)
  • Snow removal contractors have a duty not to negligently remove snow by creating or aggravating an unnatural accumulation of snow or ice.  McBride v. Taxman Corp., 327 Ill.App.3d 992, 996 (2002)
  • If the landowner or a hired contractor creates and unnatural accumulation then liability may result and the fact that snow has been cleared and that there are piles of snow present suggests that the snow piles are an unnatural accumulation.  Citing Krywin v. CTA, 238 Ill.2d 215, 227 (2010)
  • Where a defendant created the condition through its own negligence, a plaintiff does not need to show constructive or actual notice.  Reed v. Wal-Mart Stores, Inc. 298 Ill.APp.3d 712, 715 (1998)

I expect that this case will be cited quite often in snow and ice cases.  Hopefully, it will lead to a thawing of the position adopted by insurance carriers regarding their settlement positions on these types of cases.

If you or someone you know has suffered an injury resulting from a slip and fall or a dangerous condition of a property please contact Gorey Law Group at (312) 445-5859 or e-mail John Gorey at for a free consultation.  

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Supreme Court Rule 212(d) Amended to Allow a Discovery Deposition of Party to be Used as an Evidence Deposition if Unavailable at Time of Trial Due to Infirmity or Death

The Illinois Supreme Court amended SCR 212 (d) today to permit  a discovery deposition of a party to potentially be used as an evidence deposition at trial in the event that the party is unavailable at trial due to infirmity or death.  Previously, the rule did not permit the use of a discovery deposition in these circumstances.  However, after the truly unjust result in Berry v. American Standard, Inc., 382 Ill.App.3d 385 (5th Cir. 2008) the Supreme Court Rules Committee responded by amending the rule to permit the conversion of a discovery deposition in order to do substantial justice.  It should be noted that the committee notes specifically state that the rule is expected to be used infrequently because most situations will result in an evidence deposition being taken.  In otherwords, don’t just assume that you’ll be able to use the deposition if your client is infrim or dies prior to trial.  If the facts were to establish that the party was on death’s door for some time and action was not taken by the counsel representing that party to preserve the testimony then the protection of the rule will not likely apply.  However, in the event of a sudden and unexpected death, or a pattern of deliberate delay similar to that seen in the Berry case, then the discovery deposition will likely be permitted to be used at trial as an evidence deposition. 

This is a very reasonable and welcome amendment in my opinion.  Over the course of nearly 50 jury trials, I have personally only been confronted with the need for Rule 212(d) on one prior occasion, when a treating physician was suffering from stage IV pancreatic cancer at the time of trial and her discovery deposition was used as an evidence deposition because she was not able to appear for trial or even sit for an evidence deposition.  From a practical standpoint, it was a mess because discovery depositions are taken in such a manner that they don’t always flow the way that you’d want them to at trial.  But it was certainly better than not having the testimony at all.  In the context of a party, I foresee some changes in the way that I will approach these depositions.  Given the fact that there is now a potential for the discovery deposition to be the only testimony heard from a party at trial, it will be necessary to be a bit more thorough at the discovery deposition.  There have been occasions in my career where I’ve had a defense attorney take a very cursory deposition of my client where they failed to get a lot of information and I have taken a ‘don’t ask, don’t tell’ approach.  I figured that if they were surpised at trial due to their own lack of curiosity or experience then it was their problem and would likely benefit me at trial.  I think that in light of this amendment I will be much more likely to fully flesh out the testimony at the discovery deposition in order to preserve all of the good facts for my client in the event that the discovery deposition is the only form of testimony presented to the jury.  Indeed, I think that the same can be said with defendants depositions.  The impulse to lie in wait with good impeachment might not be the best strategy with this amendment.

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Ortiz v. Jesus People – Landowner Liable for Injury Resulting from Falling Tree Limb in Wind Storm

Ortiz v. Jesus People, USA d/b/a The Friendly Towers, 1-09-3255 (O’Mara Frossard)
Facts:  The plaintiff was struck and injured by a falling tree limb that extended from the defendants property directly over a public sidewalk.  Expert testimony presented by the plaintiff at trial established that the tree was a Siberian elm which are generally undesirable in urban environments because they are brittle and pose a hazard of falling branches, and this tree in particular had structural defects.  The defendant did not hire professionals to inspect or maintain the tree, relying instead upon a layperson with no expertise in trees.  The jury found for the plaintiff and the defendant appealed the trial court’s denial of its motion for j.n.o.v. and a new trial.
Holding: Under Illinois law an urban landowner owes a duty of reasonable care that includes taking reasonable steps to prevent injury, therefore the jury’s determination that the defendant’s inaction constituted a breach of duty was not against the manifest weight of evidence and did not warrant a judgment n.o.v. or a new trial.

Filed in Trial Book Under:  Trees; Judgment N.O.V.
Commentary:  Pursuant to Section 363 of the Restatement (Second) of Torts there is normally no liability to a landowner for injuries that arise from a natural condition of the land, including trees.  However, there is an ‘urban exception’ to this rule when the injury from a tree occurs on a public highway.  This makes a lot of sense because traffic in urban areas is more frequent and land is less wooded such that imposing a duty upon landowners to inspect those trees on the property that abut the public way is not particularly onerous especially when weighed against the likelihood of injury to travelers on the roadway.  The defendant sought refuge in its ‘layperson ignorance’ of the potential problem of this tree, arguing that identifying the alleged defect required expertise and therefore they were not on notice of an unreasonable condition of the property.  The court rejected this argument outright and imposed an affirmative duty to inspect such that under these circumstances, where the branch was 19 feet long and 14 inches in diameter, the defendant was required to take significant preemptive action in order to protect the public, including hiring a professional to inspect and/or maintain the tree.

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